Civil Law

This article explores the concept of Civil Law and the interrelation between law and morality. It discusses the views of philosophers like St. Augustine, Immanuel Kant, Lon Fuller, and H.L.A. Hart on the topic.

Running head: CIVIL LAW
Civil Law
Name of the Student
Name of the University
Author Note

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An unjust law is no law at all is a legal maxim propounded by St. Augustine of Hippo
who argued that an actual law should meet the criteria of divine law if it wishes to be a law at
all1. This view of St Augustine has been heavily debated by political thinkers like Lon Fuller
and H.L.A. Hart. This view has been associated with natural law and justice. Moving forward
from the realm of religion to the realm of philosophy, Immanuel Kant, a political philosopher
argued on the point that a law, which is not in accordance to moral law is not a bona fide law
at all.
A law must respect people's freedom in order to be a genuine and unjust law which is
meant to protect the people. As argued by Immanuel Kant, moral law has an intimate
connection with freedom and freedom can be restricted only when the moral law encroaches
upon the freedom of others2. Kant has been pointed of being extremely formal in
characterizing moral law. Other philosophers like Locke, Hobbes and Aquinas had placed
arguments saying that moral needs are dependent on the standards of logic and rationality,
which indirectly points at law. On the other hand, Lon Fuller and H.L.A. Hart have been
critical of each other’s view on the relation of morality and law that demonstrates the
partition between positivist philosophy and natural law philosophy.
H.L.A. Hart being a positivist philosopher believed that there is segregation between
what law is and what law should be. As argued by Hart, moral rights and legal rights have no
relation whatsoever3. He believed that the way of deciding a case by the help of deductions
and logic is not necessarily incorrect just like deciding a case in accordance to social and
moral norms is not necessarily correct. Hart gives the example of ‘the core and the penumbra'
to explain the perspective that law must have a relation with the meaning of the words and
1 Norman Kretzmann Lex Iniusta Non est Lex-Laws on Trial in Aquinas' Court of Conscience (1988) 33 Am. J.
Juris 99
2 Immanuel Kant Moral Law: Groundwork of the Metaphysics of Morals (Routledge, 2013)
3 Herbert Lionel Adolphus Hart “Positivism and the Separation of Law and Morals” (1957) 71 Harvard Law
Review 593.

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not with any natural or moral beliefs4. Lon Fuller, on the other hand argued that the
philosophers like Hart, Austin, Gray have ignored or avoided the interrelation between law
and morality. Fuller could not give up on the interrelation as he argued that it would
otherwise defeat the idea of fidelity to law. As argued by Fuller, law is said to be representing
order simpliciter. As commented by Fuller, law refers to a good order that demands justice,
morality as well as people’s notion of what is just and proper for their well being5.
Therefore, the statement made by St. Augustine of Hippo that an unjust law is no law
at all is agreed to a great extent following the arguments of Fuller who establishes his ground
that there are relation between law and morality. Thus, it can be concluded that a law that
does no good to men has no value or worth to the people either.
4 Ibid.
5 Lon L. Fuller Positivism and fidelity to law--A reply to Professor Hart (1957) 71 Harvard Law Review 630.

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References
Herbert Lionel Adolphus Hart “Positivism and the Separation of Law and Morals” (1957) 71
Harvard Law Review 593
Immanuel Kant “Moral Law: Groundwork of the Metaphysics of Morals” (Routledge, 2013)
Lon L. Fuller Positivism and fidelity to law--A reply to Professor Hart (1957) 71 Harvard
Law Review 630
Norman Kretzmann Lex Iniusta Non est Lex-Laws on Trial in Aquinas' Court of Conscience
(1988) 33 Am. J. Juris 99